Judging the judges

Money and back-room politicking are contaminating the selection of judges

PETER COOK, a British comedian, once portrayed a slow-witted miner musing that he would have become a judge, “but I never ’ad the Latin.” Alas, in America, he might have done better: digging in the dirt for donations and political support sometimes seems more important to becoming a judge than any intellectual skill.

At its worst, a judgeship may be in the gift of just one politician. Vito Lopez, the Democratic boss of Brooklyn, was, until recently, the perfect example. In New York most judges are elected, even to lower trial courts. In places like heavily Democratic Brooklyn, the real fight is to get on the ballot as the Democratic candidate, which needs Mr Lopez’s say-so. As one Democratic anti-Lopez activist, Matt Cowherd, puts it, “The good news is that Democrats outnumber Republicans seven to one, and the bad news is that they outnumber Republicans seven to one. It fosters a unique and sometimes corrupt culture.” Another activist says that the meetings which are held to give the process a democratic veneer resemble “the Politburo combined with the Ringling Brothers Barnum & Bailey circus.” Mr Lopez has now stepped down, accused of sexual harassment. Whether his successor will be an improvement remains to be seen.

New York is unusual in having highly politicised trial judges, but a relatively clean merit-based system for the highest appeals court. In other states the situation is usually reversed, with state Supreme Court judges increasingly resembling ordinary politicians in partisan mudfights. In 2010, after Iowa’s Supreme Court unanimously struck down a ban on gay marriage, anti-gay-marriage groups targeted three judges with half a million dollars in spending. All three lost their seats. Results like this made national news, and inspired more spending than ever in this election cycle: $28m on television alone, according to the Brennan Centre for Justice at New York University. Much of the cash came from outside groups, mainly super-PACs and parties: $15.9m this year, against $10.4m in 2008.

This year, though, the voters also pushed back. The anti-gay-marriage groups took aim at another Iowa judge who signed the gay-marriage decision, but he narrowly kept his seat. A judge in Ohio, hit with an outside ad saying that he had “expressed sympathy for rapists”, won his seat anyway. Three judges in Florida survived an unusually heavy deluge of outside money to hold on, too. And in Missouri, Arizona and Florida voters rejected referendums that would have given politicians more say in picking judges.

But plenty of problems remain. As right-leaning groups try to unseat judges, left-leaning trial lawyers and bar associations step in with their own donations to rescue them. That hardly eliminates fears of outside influence. Only about a dozen states have rules requiring judges to recuse themselves when lawyers who have contributed to their campaigns come into their courtrooms. Outdated disclosure rules allow interest groups to hide their contributions by channelling them through the state political party or front organisations.

Brooklyn, says the Brennan Centre’s Adam Skaggs, needs either public primary elections for judges or a proper merit system, instead of having the worst of both back-room dealing and voting. In the rest of the country, the 39 states that elect high-court judges need improved recusal requirements and robust public funding to keep judges from “dialling for dollars”. Instead, if the past several years are any kind of prologue, politicians will continue trying to hollow out judicial freedom by weakening independent commissions and strengthening the hands of governors and legislators in picking judges. Politicians love to complain about biased judges: but some of them seem to be intent on making the situation worse.